https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6043
The appeal failed because the dispute raised substantive contested issues, including the implementation of a consent and allegations of conspiracy, which could only be resolved through a full trial; striking out the pleadings would have unfairly condemned the respondents unheard.
Source-derived case information.
- Citation
- [2026] KEHC 6043 (KLR)
- Parties
- Appellant: STEPHEN OWINO T/A S O OWINO & ASSOCIATES ADVOCATE; 1st Respondent: BRIAN YONGO; 2nd Respondent: HARIT SHETH ADVOCATES
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Appeal E631 of 2021
- Procedural Posture
- Civil Appeal From a Lower Court Ruling on Applications to Strike Out Defence and Plaint / Appeal Judgment
- Outcome
- Appeal dismissed
- Judges
- ["LP Kassan"]
- Legal Topics
- Striking Out Pleadings, Consent Orders, Fair Hearing, Trial Issues, Allegations of Conspiracy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
STEPHEN OWINO T/A S O OWINO & ASSOCIATES ADVOCATE
Appellant
BRIAN YONGO
1st Respondent
HARIT SHETH ADVOCATES
2nd Respondent
Procedural Posture
Civil Appeal From a Lower Court Ruling on Applications to Strike Out Defence and Plaint / Appeal Judgment
Legal Issues
- 1 Whether the application to strike out the defence should have been allowed
- 2 Whether issues surrounding a consent and its implementation could be determined without a full trial
- 3 Whether the lower court erred in dismissing the application
Ratio Decidendi
The appeal failed because the dispute raised substantive contested issues, including the implementation of a consent and allegations of conspiracy, which could only be resolved through a full trial; striking out the pleadings would have unfairly condemned the respondents unheard.
Court Disposition
Appeal dismissed
Orders
- Each party shall bear own costs
Full Case Text
Judgment text and source record
1 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS CIVIL APPEAL MISC E631 OF 2021 STEPHEN OWINO T/A S O OWINO & ASSOCIATES ADVOCATE …. ……………..APPELLANT VERSUS BRIAN YONGO…………………………….…….……..1ST RESPONDENT HARIT SHETH ADVOCATES ………………………….2ND RESPONDENT JUDGMENT 1. There are two applications which are the product of a decision by the lower Court that prompted this appeal. The first application is for the striking out of defence for several reasons which I shall analyze in order to determine this appeal. The Applicant filed a lengthy supporting affidavit and raised a raft of issues. One of the issues is that he was not represented by the 1st defendant(responded) and disputed how a consent was implemented. He insinuates conspiracy between the 1st Defendant and the 2nd defendant and went ahead to allege that the 2nd defendant was duped by the 1st defendant. Without going further, it is trite clear that this is case that must go to full trial. The Applicant appears to have 1 | P a g e fagged out trial issues in his supporting affidavit. The defendants have a right to reply to the allegations contained in the supporting affidavit especially on the issue of implementation of the consent and allegations of conspiracy- and this can only be ventilated during full trial. The consequence of allowing this application is tantamount to condemning the defendants unheard and so the lower court was correct in dismissing the application dated the 3rd day of June 2025. 2. The 1st defendant simultaneously filed an application to strike the plaint and went ahead to raise the issue of consent that the Applicant referred in his motion which was dismissed by the lower Court. It is clear that the issue of consent need attention in order to arrive at justice. This therefore means that parties should be allowed to proceed to full trial. I have also looked at the Plaint and the Defence and noted that this is a matter that must go to full trial. 3. The conclusion of the above is that this appeal is dismissed. Each party shall bear own costs DATED DELIVERED VIRTUALLY AND SIGNED ON THIS 7TH DAY OF MAY 2026. L. P. KASSAN 2 | P a g e JUDGE 3 | P a g e